Newsgroups: talk.politics.guns
From: "Paul Hager" <[h--ge--p] at [cs.indiana.edu]>
Subject: ICLU 2nd Amendment debate heats up
Date: Fri, 1 Jul 1994 10:19:43 -0500
ICLU 2nd Amendment Debate
It has been some time since I've posted about what is
happening with the Indiana Civil Liberties Union (ICLU) and the
impending vote on a new policy that recognizes that the 2nd
Amendment protects an individual right.
Over the past month or so, there has been some slippage of
support. One key supporter, Randy Paul, did a complete 180 after
reading the memo which I have appended immediately below. He had
been wavering, however, chiefly because a handful of members had
expressed their opposition -- despite having read none of the
Commission's material -- with one threatening to quit the Union
if the new policy was adopted. It was at Randy's request that a
statement of the "collective right" case be generated. His claim
was that the Commission report was "tainted" because both sides
were not presented.
Alex Tanford, the person who wrote the memo, has also
slipped some -- how much I'm not sure. He says that he still
thinks there is "some degree" of individual right but would only
favor a policy that allowed for liberal regulation "in the
interest of public safety." Alex says that his position has
shifted away from the individual right position after having read
Joyce Malcolm's book.
Though ostensibly a "devil's advocate" piece, I expect the
"collective right" memo will be used as an intellectual fig leaf
to provide a way out for people who don't want to face this
issue.
I have prepared a response to the "collective right" memo
which is appended directly after it. I also contacted Prof.
Robert Cottrol and Prof. William Van Alstyne requesting that they
critique the legal reasoning in the memo. I sent a copy of the
memo to Prof. Joyce Malcolm, who wrote _To Keep and Bear Arms_
and requested that she review its historical assertions. And, I
set a copy to Prof. Don Kates whose response I have appended at
the end.
The material that follows it pretty much self-explanatory.
It is my view that the collective or states' right case is a
nullity. I'm hoping that the response will slam dunk this thing
so thoroughly that no one will honestly be able to support it.
There is a July ICLU Board meeting where the issue may be further
discussed. The "collective right" memo and my response is being
sent to Board members in advance of this meeting.
I would, of course, be interested in any comments pro or con
about the following material.
--paul hager
-------------------BEGIN TANFORD MEMO----------------------
The Other Side of the 2nd Amendment Debate
Alex Tanford
A. SUMMARY
History reveals little support for an individual right to
keep and bear arms. In 17th century England, all citizens had
the duty to privately purchase and maintain the arms needed for
war because the Crown couldn't afford it. It was not originally
a "right," and the King routinely disarmed groups who opposed his
policies. In 1688, a right of Protestants to have the arms
necessary for common defence was created, but it had three
limitations -- it never applied to concealable pistols and
crossbows favored by highwaymen, it was explicitly made subject
to regulation by Parliament, and it had nothing to do with
individual rights.
When the US Constitution was enacted, only one of the 13
states had a constitution that guaranteed an individual right to
keep weapons. The others were either silent or provided only for
collective defense of the village and state.
The delegates to the Constitution Convention and early
Congresses were concerned with the federalist/anti-federalist
debate, not individual libertarianism. In the second amendment
context, the issue was whether the states or the new federal
government would control the militia. There is no record of
anyone suggesting the power lay in individual citizens.
The reason the militia was important in 1780 was that it
served a unique social function. It was the vehicle through
which all adult males in the community gathered to discuss issues
of civic and political importance, and young men were initiated
into adulthood. It enforced civic conformity and put down (by
force if necessary) dissent. It presupposed universal gun
ownership so that no small group could seize power, and
presupposed universal social agreement that individual weaponry
was a good idea. The right to bear arms was linked to this
central idea of community, not individualism.
Even if there were an individual or a community right to
bear arms 200 years ago, that would not answer the question of
what the second amendment means today. The constitution is
always interpreted in light of contemporary
socio-economic-political conditions. Just as we support a modern
view of the rights of African Americans, women, and the gay
community, we must support a modern view of the second amendment.
Proper constitutional interpretation requires that we look not
just at history and the intent of the framers, but also at logic,
the social purpose of the original provision, the modern context,
the recent history of violence among citizens, social necessity
and our collective recent experiences with guns that can fire
dozens of bullets in a few seconds. Modern social conditions
suggest the need for a restrictive interpretation of the second
amendment.
Indeed, it may be that there is simply no meaning at all to
the second amendment. The assumptions underlying it are no
longer true. Militias no longer exist, and the second amendment
(whether an individual right or a collective one) was
inextricably tied to the existence of a militia. Shared
community values no longer exist. A weak federal government that
might easily be conquered by England no longer exists. Universal
gun ownership does not exist, and could not exist because many
people believe guns are too dangerous to have in the house.
The best that can be said is that the second amendment
recognizes a right of an individual to possess a single
non-concealable gun and ammunition if that person is a member of
a state militia and if that person has been properly trained in
its use. The federal government may regulate but not ban such
weapons, although it may ban handguns. The amendment imposes no
limitations on the power of state government to regulate weapons,
license people who own them, require training, and so forth.
B. HISTORICAL ARGUMENT
The most recent and most scholarly account of the history of
the Second Amendment comes from Harvard historian Joyce Malcolm,
in a 1994 book "To Keep and Bear Arms."
1. The disorder of the Middle Ages made popular participation in
local peacekeeping a necessity to preserve order. Every (male)
English citizen therefore had a duty to own a sword.
2. In the 16th century, England developed a true central
government, but it lacked financial resources, so continued to
depend on a citizen-army with a duty to bear arms but no right to
do so. Any potentially dangerous segment of society (eg,
Catholics) could be disarmed.
3. In the 17th century:
a. As firearms replaced swords, the Crown maintained a
monopoly on the production and distribution of gunpowder, in
order to assure that private weapons were used only for proper
purposes.
b. There was still no police force in England. Each head
of a household was responsible for protecting his own home, and
(under the supervision of a constable) his village. However, the
requirement that everyone help put down riots and insurrections
as part of a posse comitatus was replaced by a trained militia --
a force that served both as police and army. The militia was
under the orders of the King.
c. From the invention of the handgun, its use was
restricted because it was popular with criminals. It was never
considered relevant to the right to bear arms.
d. By the end of the 17th Century, the privilege of owning
guns was limited to the upper classes, to protect their exclusive
right to hunt. Killing of game by ordinary people was
"poaching."
e. Parliament wrestled control of arms and militia away
from the King "in the name of the people," but they confiscated
most private weapons and created central arsenals.
4. In the reign of William and Mary, Parliament passed the
English Bill of Rights, which included a right to bear arms. It
went through three drafts as follows:
a. "It is necessary for the publick safety, that the
subjects which are Protestant, should provide and keep arms for
their common Defence."
b. "That the subjects which are Protestants, may provide
and keep Arms for their common Defence."
c. "That the subjects which are Protestants may have arms
for their Defence suitable to their Conditions and as allowed by
Law."
5. In the early years of the American colonies, every colonist
was required to own and carry weapons because of the dangers of
living on the frontier. These laws had generally died out by the
1770's.
6. By the later 1700s, the colonies had become civilized, and
weapons were generally stored in central armories.
7. The colonists objected to a standing (British) army, wanted
it out of America, and wanted it replaced by a locally controlled
civilian militia. This is the context in which there was any
debate about the right-duty-privilege to keep and bear arms. For
example, the Virginia Bill of Rights of 1776 said:
"That a well regulated militia, composed of the body of
people trained to arms, is the proper, natural and safe
defense of a free state: that standing armies in time of
peace should be avoided as dangerous to liberty; and that in
all cases the military should be under strict subordination
to, and governed by, the civil power.
The Massachusetts constitution of 1780 recognized that "the
people have a right to keep and bear arms for the common
defence," and for no other reason. The North Carolina
constitution was similar. New York went farther and commanded
that "a magazine of warlike stores, proportionate to the number
of inhabitants, be established [and] maintained ... in every
county." Only Pennsylvania included a right to personal defense.
8. The supposed historical right to self-defense is found
explicitly only in the Pennsylvania constitution among the
original 13 states. Others contain no such reference, or only
general preamble language that "all men are born free and equal
and endowed with the natural rights to life, liberty, property,
happiness and safety" which does not say whether it is the
individual's or the state's obligation to provide for that
liberty and safety.
9. The image of the typical 18th Century American as a Daniel
Boone-type individualist frontiersman whose gun was always at his
side is dubious. By the 1780's, most Americans lived in tightly
knit authoritarian communities in which everyone conformed to a
common set of social norms, similar to contemporary evangelical
Christian communities. It is highly unlikely they had any clear
notion of the individual apart from the community. They feared
strong central federal government, not local government, and they
drafted a constitution intended only to limit the power of that
federal government.
10. The debate at the Continental Congress, and then before
Congress when it considered the Bill of Rights, was whether the
state or the new federal government would control the militia.
There is no record of anyone suggesting the power lay in
individual citizens.
C. DOES HISTORY CONTROL MODERN CONSTITUTIONAL INTERPRETATION?
The answer is so clearly "No," that little discussion is
needed. In 1819, Chief Justice Marshall stated:
This [is] a Constitution intended to endure for ages to
come, and consequently, to be adapted to the various crises
in human affairs.
The constitution has always been interpreted in light of
contemporary socio-economic-political conditions. One need only
cite Roe v. Wade, Brown v. Board of Education, and Gideon v.
Wainwright.
Jethro Lieberman's book, The Evolving Constitution (1992)
points out that Constitutional provisions have always been
interpreted according to a blend of at least twelve principles:
1. Logic
2. Plain meaning
3. The social purpose of a provision
4. The constitution's structure
5. The intent of the framers
6. The context
7. All provisions must have been intended to mean
something
8. History, especially English
9. Considerations of judicial economy
10. Considerations of social necessity
11. Growth of our collective experience
12. Precedent
Thus, even if history and the intent of the framers support a
broad individual right to bear arms, that in no way controls
contemporary interpretation. Indeed, to ignore logic, social
purpose, the modern context, the recent history of violence among
citizens, social necessity and our collective recent experiences
with guns that can fire dozens of bullets in a few seconds, is to
do a bad job of interpreting the Constitution.
D. PROF. DAVID WILLIAMS' ARGUMENT:
1. The militia was not a military unit; it was all adult male
citizens, similar to the Hebrew temple or a Native American
Indiana tribal council. It had several social functions:
a) passing on of civic pride and tradition in a unified,
non-diverse community;
b) initiating young men into adulthood and teaching them
their responsibilities to the community;
c) serving as a forum for political debate;
d) assuring a source of armed resistance against a
tyrannical ruler; and
e) protecting the community against dissident groups and
troublemakers by force.
2. In the body of the US Constitution (Art. I, 8), Congress
was given the power for "organizing, arming, and disciplining the
Militia." When the politicians went home to try to sell the new
constitution in their states, they discovered that many people
viewed potential federal control of the Militia as a threat to
their quasi-tribal way of life. It was as if the Constitution
had given Congress the power to provide the vehicles for parades,
and an outcry from Shriners followed that they might not be able
to wear fezzes and ride miniature motorcycles.
3. The second amendment was adopted to assure people that they
could continue to keep and bear arms, so that they could still
gather together on weekends to train with their local militia and
camp out.
4. Contemporary society is no longer defined by small, cohesive
communities with shared values. The modern community is
characterized by diversity, not conformity.
5. In the 19th century, militias degenerated into vigilante
groups such as the Ku Klux Klan in the south, and the Posse
Comitatus in the west.
6. The concept of a militia presupposed universal gun ownership
so that no smaller group could seize power, and presupposed
universal social agreement that individual weaponry was a good
idea.
7. The assumptions underlying the second amendment are no longer
true:
a. Militias no longer exist, and the second amendment
(whether an individual right or a collective one) was
inextricably tied to the existence of a militia.
b. Shared community values no longer exist
c. A weak federal government that might easily be conquered
by England no longer exists.
d. Universal gun ownership does not exist (compare
Switzerland).
e. Universal agreement that having a gun in the house is a
civil virtue no longer exists
8. Therefore, the second amendment has no real meaning in modern
times.
------------------------END OF TANFORD MEMO----------------------
M E M O R A N D U M
From: Paul Hager, Chair, ICLU Second Amendment Commission
To: Board members and others
Subject: Enclosed materials and response to "collective right"
memo
_________________________________________________________________
Because it was felt that more time was needed to discuss the
recommendations of the Second Amendment Commission, the date for
a final ICLU Board vote on the proposal is scheduled for
September. It is expected that in the interval there will also
be time for chapter input. During this period, it is my
intention to make myself and other members of the Commission
available to meet with chapters around the state and discuss our
report and its recommendations.
I am including with this memorandum, the published version
of William Van Alstyne's analysis of the Second Amendment that
appeared in the most recent issue of the Duke Law Journal. Prof.
Van Alstyne is one of the country's foremost constitutional
scholars, a long-time member of the ACLU, and a former member of
the ACLU National Board. Board members will recall that his
preliminary notes for this article were part of the report
presented by the Second Amendment Commission. Incidentally, I
should mention that the Commission generally favored scholars
affiliated with the ACLU as sources. This was chiefly because we
can reasonably expect that these scholars share our fundamental
beliefs about civil liberties and it is less likely that their
analysis reflects a hidden agenda or bias.
I am also including two memos by Don Kates. The first of
these is his analysis of the collective right memo. The second
is an analysis of the implications for Federal gun control
efforts if the Second Amendment is indeed a states' right, rather
than an individual right. This second memo overlaps in part, but
not entirely, an amicus brief filed by Kates and 20 other law
professors in the U.S. Supreme Court case _United_States_v._
_Lopez_. I have included an excerpt from that brief as an
Appendix herein. I have also contacted Professors Robert Cottrol
(of Rutgers) and William Van Alstyne who have offered their
assistance in analyzing the collective right memo. At the time I
write this I have not yet received their responses but will make
them available to the Board when I do.
For those unfamiliar with Don Kates, I offer a short bio.
Don Kates is a graduate of Yale Law School and a former law clerk
for William Kunstler. He did civil rights work in the South and
drafted civil rights legislation for the House Judiciary
Committee. He has held administrative positions with California
Rural Legal Assistance and was director of litigation for the San
Mateo County Legal Aid Society. He specialized in major
constitutional litigation and police misconduct litigation. In
1970 he was named the nation's outstanding legal services lawyer
by the National Legal Aid and Defender Association. Kates has
taught constitutional and criminal law at St. Louis University
and as a criminologist is currently associated with the Pacific
Research Institute. He is a long-time member of the Northern
California ACLU.
Finally, let me express my thanks to Alex Tanford for
tackling the so-called "collective right" position. I think he
has done a very good job of synthesizing the arguments that have
been made in support of this position. In so doing, he permits
us to respond to it directly and expose its fatal flaws in a
straightforward manner.
COLLECTIVE RIGHT: A BRIEF RESPONSE
_Summary and abstract_
The "collective right" interpretation of the Second
Amendment has three serious flaws. The first of these is the
assertion, in effect, that the amendment has no meaning. This
violates basic principles of constitutional analysis. The second
is that in order to purge the amendment of meaning, it is
necessary to embrace a mode of analysis that is anti-civil
libertarian. Were this reductive approach adopted by the ACLU,
it would undermine all of our other civil liberties efforts. The
third flaw is the selective misreading or misrepresentation of
history.
The collective right interpretation ignores the history and
purpose of the Fourteenth Amendment which was enacted, in part,
to counter Southern efforts to disarm freed Blacks and their
Unionist allies. For the ICLU/ACLU, a progressive reading of the
Second Amendment would focus on the individual right of self-
defense.
_The matter of meaning_
The collective right memo was written after at least one
board member complained that the Commission erred in not
providing a statement laying out "the alternative" position.
First, let me say that if the Commission erred in this regard,
the fault is mine. However, had we presented an alternative, it
would have been a states' rights analysis linking the Second
Amendment with the 10th Amendment. The reason for this is very
simple: the term "collective right" as it appears in ACLU policy
#47 has no meaning unless it is interpreted as being a states'
right. Certainly the policy seems to say as much when it
describes the right "existing only in the collective population
of each state for the purpose of maintaining an effective state
militia."
In reading the collective right memo, warning bells should
go off immediately when we see it say that "it may be that there
is simply no meaning at all to the second amendment." This
avoids a states' rights analysis but, in so doing, violates a
basic principle in constitutional exegesis that a provision must
mean something. To say that the Second Amendment or, indeed, any
part of the Constitution is devoid of meaning belongs in the
Robert Bork "inkblot" school of analysis (Bork, it will be
remembered, dismissed parts of the Bill of Rights with which he
disagreed as "inkblots").
Initially, I was one of the strong proponents of a
collective or states' right on the Second Amendment Commission.
I quickly became frustrated and then increasingly suspicious when
no explanation was ever offered as to what the Second might mean.
In fact, with the possible exception of David Williams, none of
those arguing for a collective right interpretation was willing
to tackle this issue. Even Williams' analysis collapses because
he, too, accepts the idea that constitutional provisions can have
no meaning -- that they can be somehow vitiated through disuse.
Thus, Alex is not to be faulted for failing to provide us the
possible implications of the collective right position, for the
simple reason that no one else has.
Until now, that is. Don Kates and Prof. Glenn Reynolds
(University of Tennessee Law School) are currently working on a
paper in which they explore the ramifications of taking the
collective right argument seriously. Though the paper is not
ready yet, a memorandum which Don circulated in May that lays out
some of the consequences of a collective rights interpretation is
available. As noted above, I am including it for the Board to
examine. In brief, Kates' memo and the _Lopez_ _amicus_ brief
argue that the states' right view, by its logic and historical
premises, allows the states to stockpile any and all tactical and
strategic weapons, including nuclear weapons, for the use of
state-organized military organizations, without authorization by
or veto from the federal government. Similarly, the states could
authorize their citizens to keep military weapons on hand in the
event of a militia call-up.
It can be seen from the Kates memo and the _amicus_ brief
that a collective or states' right interpretation poses serious
problems for gun prohibitionists. This could explain the total
lack of scholarship in this area from collective right devotees,
many of whom seem also to be gun prohibitionists.
The Commission's efforts to develop a collective right
analysis in the absence of thorough scholarship on its behalf
were ultimately abandoned when the strength of the individual
rights case became apparent.
_Constricting constitutional rights is anti-civil libertarian_
For civil libertarians, more warning bells should go off
when we see that the methodology of constitutional analysis being
adduced amounts to the following:
1) Society was very different 200 years ago;
2) The complexity and risks inherent in modern society require
that we interpret constitutional protections very narrowly
in the interest of public safety.
3) Modern society is diverse and multi-ethnic and rights must
therefore be curtailed in the interest of maintaining order.
4) Given that most people in the 18th Century lived with no
real conception of individual rights, contemporary
constitutional analysis should follow a more communitarian,
less individualistic direction to flexibly address modern
social problems.
This kind of reasoning should be familiar to us. We've seen
it used time and again by opponents of civil liberties to argue
in favor of constricting constitutional protections. Most
obviously, modes of mass communication from TV to digital
networks are technologies that were unknown to and unanticipated
by the founders and that have profound social consequences. The
current drumbeat for government regulation of the content of TV
programming is led by people who claim that government must be
free to adopt a more communitarian, socially responsible
approach. In practice, this amounts to pitching those parts of
the 1st Amendment that are getting in the way of their program
for a better, more "civilized" society.
While the memorandum accurately reflects the kind of
arguments advanced in support of the "collective right" view, it
can be seen that they are poisonous for an organization
putatively devoted to civil liberties. The Constitution and Bill
of Rights is not a law of the universe -- it is a human-created
set of rules for establishing the powers of government and for
strictly limiting the exercise of government power against
citizens. Through the courage, intelligence and hard work of our
predecessors, we actually have such a set of rules that is at
least nominally accepted by the citizens of a great nation. As
civil libertarians, we protect the rights of citizens of the U.S.
by forcing everyone, including ourselves, to play by the
constitutional rules. If _we_ bend the rules for our ideological
convenience or to serve our prejudices, who does that leave to
preserve these rules for the future?
_Misreading history_
Before proceeding, I would like to remind board members that
the Second Amendment Commission report contains Prof. David
Vandercoy's draft article on the history of the right to bear
arms. Most of the historical objections raised by the collective
rights memo are answered by it, so I will not attempt a point by
point refutation in this response. Prof. Vandercoy's article has
since been published and offprints are now available1. Don
Kates' response to the collective right memo is also particularly
informative on this subject.
Like all collective right arguments, the memo misreads
history. However, the memo chooses to depend primarily on a
source that has concluded that there _is_ a strong historical
argument for an individual right. The source is Joyce Lee
Malcolm's 1994 book, _To Keep and Bear Arms: The Origins of an_
_Anglo-American Right_.
Malcolm is a historian whose specialty is the turbulent 17th
century period in England. In writing this book, Malcolm sought
to pinpoint when the _obligation_ to keep and bear arms as a
member of the militia became the individual _right_ to keep and
bear arms for personal defense and defense of the state.
_To Keep and Bear Arms_ microscopically examines the events
of the 17th century. It was a time of wars and sectarian
conflicts. Widespread civilian ownership of firearms was tied to
the militia obligation. Various mechanisms were employed by
various governments during the century to selectively disarm
subjects who were deemed to be political enemies or otherwise
considered to be a threat to the established order. Game acts,
for example, though ostensibly intended to prevent excessive
hunting and trapping, actually operated to allow the well-armed
upper class to attempt to disarm the lower class.
When Malcolm finally gets to the Glorious Revolution of 1688
and the English Bill of Rights of 1689, the reader has been
treated to:
o one monarch being deposed and executed;
o a military dictatorship;
o a restoration of the monarchy which greatly increased the
power of the King;
o the succession of a Catholic monarch whose actions so
threatened the Protestant majority that he was deposed.
The clear lesson to be learned from this period was the
importance of who had arms and who controlled those who had the
arms in the wielding of political power. This is the explanation
for Parliament's recognizing an individual right for Protestants
to have arms. As noted in the memorandum, the right to bear arms
in the English Bill of Rights went through 3 drafts.
Significantly, it was only the final draft (as noted by both
Malcolm and Vandercoy) that omitted the "common defense"
language. This proved to be crucial to subsequent judicial and
legislative interpretation of the right. For example, game acts
were no longer written or interpreted to deprive the lower
classes of their private arms.
In the period immediately following the passage of the
English Bill of Rights, both the courts and Parliament (through
legislation) took the right to bear arms seriously as an
individual right not dependant upon the militia obligation. For
example, Malcolm pointed out that even though the Bill of Rights'
language reflected a concern about preventing a Catholic
counterrevolution, Catholics could still retain arms for their
personal defense. Shortly after the Bill of Rights was passed,
"[a] bill was duly passed 'for the better securing the
Government by disarming Papists and reputed Papists.' It
decreed that no one of the Catholic faith 'shall or may have
or keep in his House, or elsewhere, or in the Possession of
any other Person to his Use, or at his Disposition, any
arms, Weapons, Gunpowder, or Ammunition (other than such
necessary Weapons as shall be allowed to him by Order of the
Justices of the Peace, at their general Quarter sessions,
for the Defense of his House or Person).' This measure is
particularly interesting for the assumptions members made in
the course of the debate. They assumed that everyone had a
right to own firearms unless he could be conclusively
convicted of Catholicism. Even in this time of danger,
Catholics were considered to have a right to own arms for
their personal defense and the defence of their
households."2
The collective right memo also inadvertently highlights the fact
that the English viewed keeping and bearing arms as an individual
right because the militia obligation in England fell into
disfavor in the 18th century thus removing it as a justification.
Both Malcolm and Vandercoy point out that political
theorists admired by the framers commented on the problems
inherent in a Bill of Rights created by an act of Parliament
which could just as easily be repealed by a subsequent act.
Likewise, both Vandercoy and Malcolm note that when the United
States protected the right to bear arms explicitly in the Second
Amendment, it was much broader than its English counterpart.
It would be a mistake to argue, as the collective right memo
implicitly does, that a particular right does not exist because a
historical epoch can be identified before said right was
officially recognized. If this were to become the mode of
historical analysis then all rights are in jeopardy. For
example, Malcolm makes reference to 17th century laws prohibiting
the free exercise of religion and punishing free speech. Given
that the 1689 Bill of Rights still allowed for forms of religious
discrimination, and the United States of 1791 was an essentially
Christian nation, the Robertsons and Falwells of today could
reasonably argue for a restrictive interpretation of the 1st
Amendment that favored the Christian religion over all others.
Malcolm devotes only one chapter to the American experience.
She explains that, rather than attempting to retell American
constitutional history which has been amply covered by others,
her goal is to track how the English duty and right to bear arms
was transmitted to colonial America and adapted to the American
context. The collective right memo draws from this chapter
Malcolm's discussion of the state bills of rights that were
enacted during the revolutionary period. However, only a highly
selective and acontextual reading of state constitutional
language would yield the conclusions implied by the memo. Both
Malcolm and Vandercoy discuss the philosophical and common law
context in which the state constitutions were imbedded. I don't
intend to repeat Malcolm's discussion -- those who are interested
should read the book. I will, however, try to paraphrase the
relevant section. The following paragraph is that paraphrase --
all points therein are Malcolm's.
Malcolm touches on material that should already be familiar
to the board from the Second Amendment Commission's report. She
concludes that Blackstone's _Commentaries on the Laws of_
_England_, the encyclopedic treatment of the English common laws,
had a profound impact on the thinking of Americans of the
"founding era." Blackstone clearly articulated the principle
that individuals had the "right of having and using arms for
self-preservation and defense" and these sentiments are
repeatedly expressed by commentators of the time. Looking at the
state constitutions, Malcolm observed that New Jersey, New York,
South Carolina, and Georgia had no bill of rights at all. Yet
this didn't mean that citizens of these states had no individual
rights. The absence of bills of rights merely reflected one
political/philosophical view that enumerations of rights were
both superfluous and dangerous (see, for example _Federalist_ #84
for this reasoning applied to the U. S. Constitution). Thus, as
regards the right to keep and bear arms, this view held that
citizens had a fundamental right to defend themselves and their
property that government couldn't abridge. For those state
constitutions which did not specifically list a right of citizens
to bear arms for personal defense,3 other language was often
present elsewhere which implied the right. Malcolm mentioned,
for example, Delaware's constitution which stated among
inalienable rights "defending life and liberty" and "protecting
property." Massachusetts which spoke of keeping and bearing arms
for "common defense" also spoke of the right of "enjoying and
defending life and liberty." The acknowledgement of these rights
clearly echoes Blackstone.
_Whither self-defense_
Some discussion of the individual right of self-defense is
unavoidable at this juncture in responding to the memo. Clearly,
the ability of citizens to engage in collective action is
dependent upon the exercise of a number of individual rights.
For example, an individual's exercise of free speech is a
prerequisite to mobilizing people for a political cause; an
individual's free exercise of religion is a prerequisite for
maintaining a viable community of believers. This also applies
to the right to keep and bear arms as originally conceived, in
which individuals, by possessing arms for their individual self-
protection, also make possible collective defense. As noted in
the Commission report and by Malcolm in her book, this was how
the right to keep and bear arms was viewed in both England and
America in the 18th century. For example, Malcolm notes that in
1769, the _Boston Evening Post_, a newspaper widely read
throughout the colonies, defended the rights of citizens to arm
themselves by citing the English Bill of Rights, natural law, and
William Blackstone.
"It is a natural right which the people have reserved to
themselves, confirmed by the Bill of Rights, to keep arms
for their defense; and as Mr. Blackstone observes, it is to
be made use of when the sanctions of society and law are
found insufficient to restrain the violence of society."
The collective right memo also ignores the important history
of the Fourteenth Amendment, which extends the protections of the
Federal Bill of Rights to the states. As noted by the Commission
Report and Van Alstyne, it was explicitly stated by the framers
of the Fourteenth Amendment that the protections of the Second
Amendment were to be extended to the citizens of the states. It
would be completely irrational to assume that after a war of
rebellion, the victorious Union intended to allow states to rearm
in order to wage war again. Instead, the purpose of the
Fourteenth was, in part, to prevent state governments and their
political allies from selectively disarming freed Blacks and
Union sympathizers thus rendering them helpless against state
governmental and quasi-governmental intimidation4.
As mentioned in the Commission Report, the subsequent legal
history of the Fourteenth Amendment as regards the extension of
the Second Amendment to the states was determined by the
precedential case, _U.S. vs. Cruikshank_ (92 U.S. 542, 553
(1875)). In a remarkable piece of legal sophistry, the Court
concluded that because the right to assemble and the right to
keep and bear arms antedated the Constitution and Bill of Rights,
they weren't rights that could be incorporated. In cases
spearheaded by the ACLU in the 1920s, 1st Amendment rights came
to be incorporated but, to date, no similar effort has been made
on behalf of the Second Amendment. The _Cruikshank_ decision
opened the door to state and local legislation that, though
appearing to be racially neutral, was actually directed at
systematically disarming African-Americans and other
"undesirables." Some of this is documented in Cottrol and
Diamond's excellent paper, "The Second Amendment: Toward an
Afro-Americanist Reconsideration5."
If we integrate the Anglo-American history of the 17th and
18th century with the 19th century of the U.S. Civil War and its
aftermath, we see that the right to keep and bear arms followed a
progression. First recognized with the English Bill of Rights,
the right was viewed as the prerequisite for common defense.
Over time, the importance of common defense through citizen
militias became less and less important even as the individual
right of self-defense became more so. However, the pernicious
effect of racism operated to allow discriminatory legislation to
be enacted which made it harder for Blacks to arm themselves for
self-defense. The sorry spectacle of a government conducting
illegal room-to-room searches for guns in Chicago housing
projects is part of that progression.
Van Alstyne and others have argued that protection of the
right of self-defense is to be found in the Second Amendment (but
recall the Nicholas Johnson article in the Commission Report that
argued that if the Second Amendment didn't exist, the right would
still be protected by the Ninth Amendment). I would argue that
efforts at gun prohibition necessarily attack this basic right.
The experience of the United Kingdom is illustrative. As the
right to keep and bear arms was slowly eroded after the passage
of the seemingly innocuous Pistol Act of 1920, so was the right
of self-defense. Current law in the U.K. states that no person
may use force in excess of that used in an attack. Although
reasonable sounding, in practice it has resulted in a number of
celebrated cases of elderly people being charged with assault
when they have defended themselves with canes or handy blunt
instruments though set upon by gangs of young toughs armed only
with their fists6. This trend is in evidence in the United
States, where many jurisdictions have determined that a number of
non-lethal instruments of self-defense are illegal on the grounds
that they can cause injuries to attackers7. Even passive modes
of self-defense are proscribed. For example, kevlar body armor
(i.e., bullet-proof vest) is reserved for law enforcement in a
number of jurisdictions. The justification is that if the bad
guys get body armor, it will make it harder for the police. This
is a perfect specimen of the kind of statist reasoning that is
always offered for restricting individual rights. It should be
remembered that one definition of a police state is that state
where laws are enacted for the convenience of the police.
For civil libertarians, a "progressive" reading of the
Second Amendment should focus on the right of self-defense. It
would be truly bizarre for the ACLU to lobby legislatures and
litigate cases to develop a "right to die" while at the same time
denying that citizens have a fundamental right to defend
themselves.
_Conclusion_
The collective right memo accurately reflects the arguments
offered by those who profess to believe that there is no
individual right to keep and bear arms protected by the Second
Amendment. None of the sources on which it relies, nor any other
writings in support of the collective-right position, take their
own position seriously enough to explore what the Second
Amendment would actually mean under their formulation, nor how
federal power would be limited and state power enhanced. This
fuels suspicion that their analysis is result-oriented -- without
even an objective view of the result.
The Second Amendment Commission unanimously concluded that
the Second Amendment protects an individual right for the reasons
stated in the report. While it can be argued that tackling this
issue poses dangers for the ACLU, refusal to address it or,
worse, using anti-civil libertarian arguments to wish it away, is
even more dangerous.
FOOTNOTES
1. "The History of the Second Amendment," _Valparaiso_
_University Law Review_, Vol 28, Number 3, 1007, (Spring
1994).
2. _To Keep and Bear Arms_, p. 123.
3. The memo's reference to the constitutions of the original 13
states is unduly narrow in focus. The constitution of
Vermont, the 14th state, adopted in 1786, stated "That the
people have a right to bear arms for the defense of
themselves and the state." Kentucky adopted similar
language in its constitution in 1792. Connecticut, like the
four states noted by Malcolm, had no state constitution at
the time; its 1818 constitution similarly declared that
"[e]very citizen has a right to bear arms in defense of
himself and the State."
4. See Van Alstyne, p 1253 and accompanying footnote 55.
5. "The Second Amendment: Toward an Afro-Americanist
Reconsideration", 80 Georgetown Law Journal 309 (1991).
6. For a full discussion, see "The Case Against Gun Control" by
David Botsford, 1990 (ISBN 1 870614 747). Botsford is a
member of the British Libertarian Alliance.
7. Technical note: many of the devices (e.g., pepper sprays,
stun guns, tear gas) are in actuality not very effective
against a real attacker and offer illusory protection.
APPENDIX
Excerpt from United States vs. Lopez Amicus Brief
[NOTE: Footnotes have been renumbered.]
D. The implications of the states' right-only view cannot
withstand examination.
Professor Van Alstyne actually understates the matter when
he characterizes the individual rights vs. states' right-only
debate as one between those who do take the Bill of Rights
seriously and those who don't. In fact, advocates of the states'
right-only view do not even take their own position seriously
enough to explore its potential results -- which turn out to be
at least as socially adverse as those often attributed to the
individual right view. In that view the basis of the Second
Amendment was the right to arms for personal defense, no
distinction being made between apolitical and political crime.1
Accordingly, as discussed _supra_, both the Amendment's text and
the logic of the individual rights view limit the kind of
weaponry the Amendment guarantees individuals to small arms only.
But the states' right-only view holds that the Amendment was
intended to guarantee that states may equip their forces with
arms sufficient to counterbalance the military force of the
federal government. Thus any _honest_, conscientious treatment of
the states' right-only view requires asking: Doesn't this
position involve the conclusion that every state may, if it
wishes, stockpile not just small arms but artillery, bombers,
aircraft carriers, ICBMs and nuclear weapons for the use of its
forces?2 If the proponents of the states' right-only view have
some _honest_, _principled_ basis for a negative answer to the
foregoing question, they have failed to offer it in their
articles. Those articles "answer" such questions by ignoring
them. States' right-only articles explore none of that view's
implications beyond the naked claim that the Amendment does not
preclude government from banning and confiscating all privately
owned firearms.
A related question arises from the crucial difference
between the two views in defining what "militia" means as that
term is used in the Amendment. The individual rights view rests
on the preferred 18th Century meaning of "militia" -- not some
formal military unit, but a _system_ under which each household
was required to be armed and virtually every military-age male
was required to own arms and appear for training and/or service
when called to do so.3 But in the states' right-only view the
word "militia" refers to a formal military unit, a body of troops
serving the state. Indeed, it is regularly asserted by partisans
of that view that the "militia" is the National Guard,
notwithstanding this Court's holding in _Perpich v. Department of
Defense_, 496 U.S. 334 (1990). But if these claims of the states'
right-only analysts are correct, how can one escape the
conclusions: a) that the Amendment repeals Art. I 10, cl. 3, of
the original Constitution which forbids states to "keep troops"
without the consent of Congress; and b) that _Perpich_ was
wrongly decided, a cognate effect of the Amendment having been to
modify Art. I, 8, cls. 15 and 16 by exalting state power over
the militia vis-a-vis federal?4
To reiterate, partisans of the states' right-only view have
not even attempted to grapple with these questions. Though their
articles purport to champion a states' right view, in fact it is
just a makeweight -- a disingenuous gibberish-concept which is
presented without analysis of its content or implications solely
to evade the inconvenient truth that the Amendment precludes the
prohibition and confiscation of all firearms.
FOOTNOTES
1. *9 CONSTITUTIONAL COMMENTARY _supra_ at 89-103 citing
examples and quoting and analyzing Locke, Sidney,
Montesquieu, Blackstone, Madison, Jefferson, Paine and
numerous others. See discussion and quotations in footnote
20 _supra_.
2. Space permits mentioning just one of the textual and logical
limitations implicit in the individual view which are
inapplicable to the states' right-only view. The Amendment
guarantees the right to "keep _and bear_ arms": Since an
18th Century man could not bear (i.e. pick up) cannon, the
intent seems limited to small arms. . . .
But that limitation does not apply if the Amendment be
deemed to create a states' right to possess military forces
against the United States. If one can stomach the
incongruity of describing a state as "bearing" arms, that
state is obviously no more incapable of "bearing" cannon
than any other kind of arms. . . .
3. *"Original Meaning", 82 MICH. L. REV. _supra_ at 214-8 ("In
short, one purpose of the Founders having been to guarantee
the arms of the militia, they accomplished that purpose by
guaranteeing the arms of the individuals who made up the
militia." _Id_. at 215), Shalhope, 49 LAW & CONTEMP. PROB.
_supra_ at 133 ("Individuals had the right to possess arms
to defend themselves and their property; and states retained
the right to maintain militias composed of these
individually armed citizens."). [other citations omitted]
4. In fact, the concept of militia held by partisans of the
states' right-only view is simply not the "militia" concept
to which the Amendment refers: "Nowadays, it is quite common
to speak loosely of the National Guard as 'the state
militia,' but 200 years ago, any band of paid, semi-
professional part-time volunteers, like today's Guard, would
have been called 'a _select_ corps' or '_select_ militia' --
and viewed in many quarters as little better than a standing
army. In 1789, when used without any qualifying adjective,
'the militia' referred to all Citizens capable of bearing
arms... [So] 'the militia' is identical to 'the people'...."
Amar, _supra_, 100 YALE L. J. at 1166, emphasis in original.
_See also_: J. Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS
OF AN ANGLO-AMERICAN RIGHT 162-3 (Harvard U. Press, 1994):
"The argument that today's National Guardsmen, members of a
select militia, would constitute the _only_ persons entitled
to keep and bear arms has no historical foundation.
[Emphasis in original.]"
Kates' Memorandum on States' Rights
May 18, 1994
TO: Akhil Amar, Randy Barnette, Bob Cottrol, Bob Dowlut, Sandy
Froman, Dan Gifford, Alan Gottlieb, Paul Hager, David Hardy, Nick
Johnson, Sandy Levinson, Joe Olson, Dan Polsby, Ed Suter, William
Van Alstyne, Jim Warner
RE: Taking the states' right theory of the Second Amendment
seriously
------------------------------------------
Anti-gun advocates have understandably never explored the
implications of their "theory." After all, for them it isn't a
theory at all but rather a makeweight to justify anti-gun laws
despite the individual right guaranteed by the Amendment.
But _we_ are at fault for not taking that position seriously
-- because its implications expose it to a parade of horrors
argument far more powerful than any that can be made against the
individual right view. . . .
STATE POWER TO RAISE ARMIES
One implication of the states' right view of the Amendment
is that it constitutes a _pro tanto_ repeal of Art. I 10, cl. 3
of the original Constitution which forbids states to raise armies
without the consent of Congress.
Thus the _theoretical_ implication of the states' right view
is that any state which wishes to is free to raise its own army
and have that army equipped with whatever weaponry it wishes, up
to and including nuclear weapons. In contrast, individual right
analysts have taken pains to argue that there are severe
restrictions on the kinds of arms which the Amendment guarantees
individuals. But none of those arguments apply if the Amendment
be deemed instead a guarantee of the states' right to arms.1 In
fact, the "militia purpose" holding of _United States v. Miller_,
which we have argued must be limited in light of the points set
out in footnote 1 _supra_, would apply in its fullest import.
Obviously, state military possession of machine-guns, tanks
cannon, bazookas, and even nuclear weapons can reasonably be
deemed to help preserve a militia if that is understood to be a
state army rather than the colonial system under which every
trustworthy man of military age was required to possess small
arms with which to appear when called to drill or military
service.
ABROGATION OF CURRENT FEDERAL GUN LAWS
I have stressed the purely theoretical nature of the
foregoing argument because, of course, no state currently has in
place even a legal structure allowing it to raise armies, much
less an actual army pursuant thereto. More important for present
purposes is that the legal structure many or most states do have
in place regarding their organized and unorganized militias would
seem to raise problems for many current federal gun laws.
1. Current State Militia Provisions--
Many states today have laws like Cal. Mil. & Vet. C. 121
by which the entire military-age male populace is classified as
the state's "unorganized militia." In addition California law
provides for and recognizes a National Guard, and creates the
unpaid, all-volunteer State Military Reserve. The latter is a
token force which is all that remains of the general organized
militia of colonial days.2 For the sake of convenience I shall
use the California term Military Reserve for such organized
militia forces today though the actual name varies from state to
state.
Where necessary for any proper purpose (e.g. maintaining
order after an earthquake or other natural disaster or defending
the state from invasion), Mil. & Vet. C. 120-3 vest in the
Governor the authority to call out the National Guard, the State
Military Reserve and the "unorganized militia." Except during the
two World Wars as hereinafter set out, conditions have not (to my
knowledge) required mobilizing these forces on a statewide basis.
But the large sheriffs' posses which exist in many rural areas
may well be deemed on-going local manifestations of the militia
concept.
In any event, it is not at all fanciful to think that it
might be necessary to call out either, or both, the (minuscule)
State Military Reserve and the "unorganized militia" in some
future disaster.3 In both World Wars and the Persian Gulf War all
or most of the National Guard was mobilized and sent overseas
with the Army. That is even more likely today when current
military doctrine dictates
the National Guard's growing involvement in the "Total
Force" concept of national defense. This doctrine
assigns many National Guard units to virtual front-line
combat status in the opening stages of future wars.4
This leaves the police as not just the first but the only line of
defense, with no formal force (except for the, by definition,
unorganized militia) available to support and augment them. In
both World Wars, this void was filled by raising volunteer
militia units to guard strategic installations and to support the
police in case of civil disorder.5
During World War II this function was performed in
California by the State Military Reserve organized pursuant to
120 of the Mil. & Vet. C. and, at least in theory, that remains
true today. It may be doubted, given current attitudes, that
armed civilians would be organized for service in many states
today even if both the Army and the federalized National Guard
were to be called overseas for a prolonged period. But the police
are simply not equipped to deal with a major natural disaster or
riots, not to mention things like the 1910s Pancho Villa raids
or a domestic insurrection. The police are organized to handle
day-to-day problems with the understanding that extraordinary
problems will be met with massive mobilization of back-up
resources. In states which have made no provision for a Military
Reserve the only available resource would be calling for armed
civilian volunteers, or calling out the entire unorganized
militia, to be placed under some kind of _ad hoc_ command
structure. (See discussion in footnote 2 _supra_.)
Moreover, even if the Army and National Guard are available
in theory, the State Military Reserve-cum-unorganized militia
might be needed to aid police after a major earthquake if
transportation disruption precludes access to affected areas by
the Army and/or the National Guard. Indeed, recent riot and
hurricane situations in California, New York and Florida palpably
demonstrated the need for civilians to be armed when the police
are unable or unwilling to provide protection.
It is also at least remotely possible that a military
emergency may create a situation in which militia forces are
needed to support the military in the U.S. Consider the example
of Hawaii immediately after the Japanese attack. To meet the
invasion that it was assumed would follow, the Army was unable
even to thinly man all the beaches --much less to maintain the
mobile reserve needed to reinforce the units assigned to the
beaches if attacked. To fill the gap, the government called upon
personally armed volunteers bearing their own arms (the
unorganized militia). They were deployed to undefended or
inadequately defended beaches as "expendables"; if attacked they
were expected to hold regardless of losses until reinforced or
relieved.6
2. Arms of the militia--
The National Guard is armed by the federal government. But
the Military Reserve and unorganized militia are self-armed. Nor
can the states look to the U.S. to arm even the State Military
Reserve, much less the unorganized militia. Admittedly during
World War I, and at times during the 19th Century, the U.S. did
give state militias some weapons. But by World War II the federal
government was so short of arms that it had to actually recall
the outmoded arms it had earlier donated to state armories. The
result was that service in the state militias was confined to
those who could supply their own arms; some militia units
enrolled gun clubs en masse.7
Likewise, California and most other states lack the funds to
arm even the enrolled members of their active militias -- much
less to stockpile enough up-to-date (or outmoded) arms to equip
any significant portion of the unorganized militia. There is no
question of a program of constantly updating arms in light of
changes in technology and tactical concepts. From the nation's
birth the expectation has generally been that when called for
service these men will "appear bearing arms _supplied by_
_themselves_ and of the kind in common use at the time." _United_
_States v. Miller_ (1939) 307 U.S. 174, 179 (emphasis added).
Even if state or federal stockpiles existed, the problems
raised by trying to distribute those arms to an unarmed,
untrained militia in the wake of earthquake, atomic attack or
other highly disruptive catastrophe are obvious:
Given that the very circumstances which require the
calling up of militiamen today may also preclude their
drawing arms from centralized armories, their home
possession of arms facilitates militia service today no
less than in the 18th Century. Moreover, the home
possession of firearms by potential militia members
would presumably facilitate familiarity with at least
those weapons. To be able to call upon a cadre of
people already familiar with weapons (particularly
those weapons they would actually be using) would seem
particularly important for the [unorganized] militia
today, in the absence of a compulsory training
requirement like those that existed in the 18th
Century.
Significantly, home and/or individual possession
of firearms is the rule today in nations like Israel
and Switzerland, which continue to rely substantially
upon the militia concept. In Switzerland, every man of
military age is required to keep a fully automatic
assault rifle (or, if an officer, a pistol) in his home
and the shooting sports are strongly encouraged for the
entire population. In Israel, voluntary ownership of
firearms is encouraged for the entire population, while
the government has donated firearms to kibbutzim and
other farming villages in areas likely to be subject to
terrorist or military attack. Reservists are encouraged
to carry their submachine guns or assault rifles with
them at all times, particularly when traveling on the
public streets.8
In sum, insofar as federal law precludes the members of the
states' organized (or unorganized) militias from owning military-
type arms, the federal law interferes with the State Military
Reserve and the unorganized militia provided for by state law.
Taking the states' right view seriously would seem to absolutely
prohibit federal gun laws which involve such interference. So I
now turn to discussion of the extent to which current and
proposed federal gun laws could reasonably be deemed to preclude
members of the states' organized (or unorganized) militias from
owning military-type arms.
3. Attacking Feinstein?--
As I understand it, the proposed Feinstein "assault weapon"
ban would ban future sales of: a) a long list of semi-automatic
firearms having a close cosmetic resemblance to modern military
firearms; b) any other having features which cosmetically
resemble modern military firearms; c) any civilian (i.e. semi-
automatic) version of a full auto modern military firearm, with
certain named exceptions; d) magazines holding more than ten
rounds.
Portions of Feinstein seem equally vulnerable to attack
under either an individual right or a states' right approach. But
overall Feinstein is much more subject to attack under a states'
right theory. If this difference has not been realized it is
because gun owners have reflexively assumed that the individual
right view of the Amendment implies a right of untrammelled
freedom of choice. That is by no means clear, however.
One could view the individual right in a restrictive manner,
just as one could view freedom of the press. If, as seems
arguable, Congress could ban importation of presses made in
foreign nations, Congress might be able to ban importation of
foreign-made firearms. Such bans might be deemed consistent with
the First and Second Amendments, respectively, absent proof that
the actual result was to seriously impede access to a product
that was vital or important to exercise of the right and for
which there was no comparable American-made substitute. As
against the individual right view the same standard might be
applied to uphold Feinstein's sweeping ban on named firearms and
types of firearms. While I think the magazine ban very dubious if
a court is going to take the right seriously, the overall gun ban
is much more defensible against the individual right view. After
all, the Ruger Mini-14/30, M-1 Carbine and M-1 Garand, which (as
I understand it) are expressly exempted, are pretty much
comparable to all the firearms which are banned.
Such an argument is more difficult to make against a states'
right view of the Amendment. The whole point of Feinstein is to
preclude what the states' right involves, i.e., civilian
possession of arms which were specifically designed for military
use. The most likely line of defense for Feinstein against a
states' right view attack would be by reference to the federal
government's power to designate the arms of the militia under
Art. I, 8, cl. 16. Such a defense is completely disingenuous,
however, and would require a gargantuan "suspension of
disbelief." If there is anything that is clear about Feinstein it
is that it is the diametrical opposite of an attempt to designate
which arms are best for military service and require civilians to
have them. Moreover, to take the states' right argument seriously
implies accepting that the Amendment at least limits the
Congressional power to designate militia weapons to the extent
that the states must have absolute power to decide what weaponry
their own state militias will have.
_Standing_. It is not at all clear that an ordinary person
_qua_ ordinary person would have standing to bring an action
based on the states' right theory. But that theory would support
any of the following suits: a) By a governor, or even a sheriff,
alleging that s/he wants to designate any, or several, of the
Feinstein-banned arms as the official arms for members of the
State Military Reserve, the unorganized militia or the Sheriff's
Posse; b) By a citizen who alleges that s/he is a member of the
State Military Reserve, the unorganized militia or the Sheriff's
Posse for which those weapons have been designated and wishes to
buy one, but cannot because of Feinstein9; c) By a state alleging
that those arms would be appropriate for militia service and that
the effect of banning them is to severely restrict the state's
ability to raise an individually armed militia.
5. Preposterously Far-reaching Implications
Vulnerable as Feinstein is to attack under the states' right
view, it is still far less vulnerable than the federal
prohibitions against fully automatic weapons and destructive
devices. Though it is weaker against the states' right view,
Feinstein can be defended with the argument I suggested _supra_
for defending it against the individual right view: that, while
it bans many military arms for the very reason that they are
military, still it allows some others which fulfill the same
purposes.
No such argument can be made to defend the federal
prohibition of fully automatic weapons against challenge by a
sheriff who wants his posse to equip themselves with MP-5s or
Uzis or a governor who wants his State Military reservists -- or
even the general populace who are members of the unorganized
militia -- to buy M-16s, not to mention M-60s, grenades, grenade-
launchers, etc. Clearly no mere semi-automatic weapon is an
adequate substitute for such arms.
To take the states' right view seriously requires accepting
that the federal government can neither ban such weapons outright
against the desire of state officials to so equip their formal or
informal militias nor impose a special and onerous tax as the
1934 Act did. The only conceivable manner in which the federal
laws could be upheld would be to imply a state-authorization
exception into them; i.e., that fully automatic weapons,
grenades, etc. are banned (or prohibitively taxed) only as to
individuals who lack an affirmative authorization to possess them
for state service.
FOOTNOTES
1. One argument has proceeded by reference to the textual
language "keep _and_ bear arms"; since an individual could
not bear, i.e. pick up, a cannon, the intent would seem
limited to small arms and, by parity of reasoning, would not
include even now-portable arms, like modern bazookas,
comparable in destructiveness to a cannon. Another, but
complementary, argument has stressed the common law doctrine
that one could not bear arms to the terror of the people:
since the idea of someone keeping a bazooka to shoot
burglars would reasonably terrify his neighbors ... Kates,
"Handgun Prohibition and the Original Meaning of the Second
Amendment", 82 MICH. L. REV. 203, 259_ff_. (1983); Kates,
"The Second Amendment: A Dialogue", 49 LAW & CONTEMP. PROBS.
143, 146-8 (1986); Halbrook, "What the Framers Intended: A
Linguistic Interpretation of the Second Amendment", 49 LAW &
CONTEMP. PROBS. 153,157-60 (1986).
Neither of these arguments are applicable if the
Amendment be deemed to create a states' right. The state is
obviously not any more incapable of "bearing" cannon than
any other kind of armament; and the common law doctrine
expressly did not apply against agents of the state. (Note,
incidentally that "bear" raises yet another textual problem
for the states' right view. Only individuals "bear" arms. To
see the Amendment as a mere states' right to _keep_ arms is
to render "bear" superfluous.)
2. I say that it is a remnant because the legal structure
of the State Military Reserve seems to indicate that it is
intended to be the command structure under which the
unorganized militia would be placed if the governor were to
call it out. This is, however, somewhat theoretical since
the occasion for calling out the _entire_ unorganized
militia seems remote. The most likely occasion for that
would be a scenario in which: a) civil war erupted in Mexico
making it necessary to police the border against Pancho
Villa-type raids and/or to police flight to the U.S. of
large numbers of Mexican refugees, while b) the Army and
National Guard were fully engaged in operations overseas _a_
_la_ the recent Persian Gulf crisis.
A more likely scenario for calling out the unorganized
militia would involve calling for armed citizen volunteers
to aid police in providing emergency service in areas where
police resources were overwhelmed by a natural disaster or
riots. In such circumstances the armed volunteers might well
be put under the command of the police rather than of State
Military Reserve officials who might not even be able to
reach the scene due to transportation disruption.
3. Note that even in states whose laws do not provide expressly
for a Military Reserve, the common law may be deemed to
continue at least the unorganized militia concept that every
man is required to appear in arms upon call by the proper
authorities.
4. Cole, "State Defense Force" (1987) 39 MIL. COLL. & HIS. 152,
154.
5. Cole, "State Defense Force" (1987) 39 MIL. COLL. & HIS. 152
(reviewing wartime experiences of Maryland militia in both
disorder suppression and general guard duties), Treacy,
"Maryland Minute Men" (1988) 6 THE GLADES STAR 214 (same);
and Cole, "United States Guards" (1988) 40 MIL. COLL. & HIS.
2 (militia performing both disorder suppression and general
guard duties nationally under joint-federal state control
during World War I).
6. Kates, 82 MICH. L. REV. _supra_; Gottlieb, "Gun Ownership: A
Constitutional Right" (1982) 10 N. KY. L. REV. 138.
Ironically, many of these volunteers were Japanese-Americans
whose colleagues in California were to be held in
concentration camps without benefit of trial or habeas
corpus until belatedly relieved by order of the U.S. Supreme
Court.
7. Compare Cole, "United States Guards", supra (World War I) to
M. Schlegel, VIRGINIA ON GUARD (1949) 131 and other sources
cited supra.
8. 82 MICH. L. REV. supra at p. 249, n. 193 (emphasis added;
citations deleted). See also the declaration of Major
Drenkowski accompanying this brief[sic]. [Declaration not
included here]
9. Another interesting possible plaintiff would be a SWAT team
member from a department where the SWAT team buy their own
arms.
--
paul hager [h--ge--p] at [cs.indiana.edu]
"I would give the Devil benefit of the law for my own safety's sake."
--from _A_Man_for_All_Seasons_ by Robert Bolt